BART's bird problem a $5 million nuisance

FREMONT -- For nearly two years, BART has been involved in an exhaustive effort to shoo away hundreds of pesky birds laying eggs along the rail extension under construction toward Silicon Valley -- even installing those inflatable dancers popular outside used-car lots.

The cost to taxpayers: $5 million -- or more than $17,000 per nest.

But BART says it's money well spent. Agency officials say the bird-related problems would have delayed BART's extensions to Warm Springs and San Jose, costing much more public money in the long run if its contractors hadn't spent millions of dollars in overtime to stay on schedule.

Strict state and federal wildlife protection laws forced BART to cordon off sections of a construction site for a new subway being built under Lake Elizabeth in Fremont whenever a nesting bird was discovered.

With the project site sitting along the route birds fly to migrate south, mallards, sparrows, doves and several other species flock to the lush, wooded area to lay eggs, which is a problem since most species of migratory birds legally can't be disturbed once settled in the nest. They kept coming back, no matter what the workers did -- and they tried just about everything, from installing sprinklers and nets to physically destroying the nests and separating bird couples before they could mate and lay eggs.

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In all, the birds -- from Canada geese to common ravens to red-tailed hawks -- tried building 288 nests in 2011 and succeeded with 102 of them, forcing crews to rope off 50- to 500-foot sections around each nest for months at a time. Some of them even laid eggs inside the construction job, choosing steel rebar and girders as their new home.

"It tested everybody's patience. The job is challenging enough as it is," said project manager Paul Medved. The birds, he added, were "very persistent."

The contractors building the $148 million, mile-long portion of the project burrowed under Fremont's Central Park are asking the BART board on Thursday to be reimbursed $5 million for the extra work they did to contend with the birds. BART had originally budgeted $90,000 for the contractors to deal with the birds, but the problem turned out to be much worse than anyone predicted.

Funding is available from the overall financing secured years ago for the subway project, which includes revenues from Bay Area bridge tolls, state funds and Alameda County sales tax.

Just why did these bird battles cost so much?

In addition to the equipment installed in an attempt to scare off the birds -- including the goofy-looking "air dancers" used to lure customers into car dealerships -- BART crews also hired independent biologists to monitor and chase away the wildlife. But the biggest costs came from crews over the last two years working overtime and bringing in extra equipment to make up for lost time dealing with the birds, which are protected under the Migratory Bird Treaty Act of 1918.

"You can imagine with the hundreds of instances with these nests happening around the job site all the time, that was impacting the contractor's ability to do the work," Medved said. "We were desperate to keep on schedule."

Delays could have pushed the project back as much as six months and pushed construction costs skyward since crews -- because of other environmental regulations -- can work around the lake only from April to October. Medved said delays would have also created a domino effect, raising costs on a $300 million track-laying contract that can't begin until the tunnel is done.

"There are laws about this, so it's quite possible that BART really didn't have a good choice," said Cohen, executive director of Oakland-based Transform, a transportation advocacy nonprofit. He noted that the funding for the birds is earmarked for construction and can't be used on train service. "It's not really prioritizing birds over humans," he said.

The construction contract, awarded to builders Shimmick Construction and Skanksa for $137 million in 2009, has since increased $11 million because of the extra bird costs and other changes.

The subway, which is virtually done now, is part of an $890 million, 5.4-mile extension into the Warm Springs district of south Fremont, which is expected to open in 2015. It's the first leg of a rail line slated to reach Milpitas and San Jose's Berryessa neighborhood by 2018.

Wildlife problems have plagued BART before when building rail line extensions.

When constructing the Peninsula line toward San Francisco International Airport early last decade, crews discovered a dead San Francisco garter snake -- an endangered species -- which briefly delayed work and cost BART more than $1 million.

Medved said while a few eggs did crack during the Fremont project, this time the agency avoided any work stoppages and was not fined by state regulators.